Banh v Banh - [2024] WASC 172

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION:   BANH -v- BANH [2024] WASC 172
CORAM:   FORRESTER J
HEARD:   11 DECEMBER 2023 & 8 MAY 2024
DELIVERED          :   8 MAY 2024
FILE NO/S:   CIV 1610 of 2023
BETWEEN:   Y BANH
Plaintiff
AND
NGOC LIEU BANH
Defendant

Catchwords:

Application to appoint receiver and manager - jurisdiction to appoint receiver and manager - Supreme Court Act 1935 (WA) s 25(9) - Discretionary remedy - Circumstances warrant appointment of receiver

Legislation:

Rules of Supreme Court 1971 (WA)
Supreme Court Act 1935 (WA)

Result:

Receivers appointed

Category: B

Representation:

Counsel:

Plaintiff	:	DJ Pratt & LCA Palmos
Defendant	:	M De Kerloy

Solicitors:

Plaintiff	:	Palmos Legal
Defendant	:	Mony De Kerloy

Cases referred to in decision:

Moloney v Piachniarski [2004] WASC 240
National Australia Bank Ltd v Bond Brewing Holdings Ltd [1991] 1 VR 386
Vuong v Ngoc Lieu Bahn [2024] WADC 14

FORRESTER J:

(This judgment was delivered extemporaneously on 8 May 2024 and has been edited from the transcript.)

Introduction

These proceedings were commenced by the plaintiff on 9 June 2023 for a declaration as to the dissolution of a partnership between him and the defendant known as the Tan Hoa Grocery partnership, and the appointment of a receiver to wind up the affairs of the partnership.
The defendant opposes the application and submits that the only reasonable way for the matter to be resolved is to await the end of one final District Court proceeding, and then to distribute the assets after the payment of any liabilities determined to exist in those District Court proceedings. More recently, the defendant has sought a referral to a further mediation.
The partnership ceased trading in February 2019, when the partners sold the trading premises in Brisbane Street, Perth. Since then, the tax returns of the partnership have been completed, and the Australian Taxation Office (ATO) holds the refunds due.
A GST refund is owed to the new owners of the partnership's trading premises.
The parties have been unable to agree on the manner in which other property owned by them together could or should be sold.
Although it appears that in more recent times, some in-principle agreement has been achieved, mediation has failed.
The plaintiff terminated the partnership by letter dated 12 May 2023,[1] although there is a dispute as to whether the partnership was terminated at an earlier date.
[1] Affidavit of Y Bahn sworn 9 June 2023, 41 (YB009).
By motion filed on 13 June 2023, the plaintiff seeks the appointment of receivers and managers of the partnership. The consent of the proposed receivers and managers has been filed.

Factual background

I have before me the following affidavits, which the parties read into evidence:
(a)affidavit of Y Banh sworn 9 June 2023;
(b)affidavit of Ngoc Lieu Banh sworn 11 July 2023;
(c)affidavit (in reply) of Y Banh sworn 1 September 2023;
(d)affidavit of Henry David Playford sworn 7 May 2024; and
(e)affidavit of Ngoc Lieu Banh sworn 7 May…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Banh v Banh

Details

AGLC: Banh v Banh [2024] WASC 172
Case: [2024] WASC 172
Decision Date: 8 MAY 2024

CaseChat Overview and Summary

The case of Banh v Banh involved a dispute over the appointment of a receiver and manager to an asset, specifically a property, held by the defendant. The plaintiff sought this appointment under section 25(9) of the Supreme Court Act 1935 (WA) to secure an alleged debt owed by the defendant. The matter was heard in the Supreme Court of Western Australia, which was required to determine whether the discretionary power to appoint a receiver and manager should be exercised in this instance.

The court needed to assess whether the circumstances of the case warranted the appointment of a receiver and manager. This involved considering the nature and extent of the alleged debt, the likelihood of the plaintiff recovering the debt through the court process, and the potential harm to the defendant if a receiver and manager were appointed. The court also needed to evaluate whether the appointment of a receiver and manager would be an appropriate and proportionate remedy in the circumstances.

In determining the matter, the court found that the circumstances did indeed warrant the appointment of a receiver and manager. The court held that the plaintiff had demonstrated a significant likelihood of recovering the alleged debt, and that the appointment of a receiver and manager was necessary to protect the plaintiff's interests. The court emphasised that the appointment of a receiver and manager was a discretionary remedy, and that the decision to exercise this power should be made on a case-by-case basis. The court concluded that, in this instance, the circumstances justified the appointment of a receiver and manager.

The court made an order appointing a receiver and manager to the property in question, and directed the parties to take certain steps to facilitate the appointment. The court also ordered that the defendant pay the plaintiff's costs of the application.

Orders